Hungry for protection? IP for your food

We, as Basckers, love food! Even though we come from different parts of the world, we all share the same passion for good food and IP. In the era of great Netflix cooking shows such as Ugly Delicious and Mind of Chef, with delicious food served from food trucks in every big city, it is hard to ignore this topic. 

Does Intellectual Property and food have anything in common? You may be surprised, but as a matter of fact they do. 

Patent

In order to patent an invention, there are few requirements which need to be fulfilled:

  • Novelty – invention has to be new;
  • Inventive step – invention can not be obvious to a person skilled in the art; 
  • Industrial applicability – invention needs to be capable of exploitation in the industry;

Having these points in mind – is it possible to patent a recipe?

It may be hard to prove that a recipe is new (no one has ever used this recipe in the world), and not obvious for a person skilled in cooking, therefore in most cases, a recipe cannot enjoy patent protection. However, a recipe may enjoy copyright protection if the requirements for such protection are met.

Whilst it would definitely be a challenge to get a patent granted for a recipe, it does not mean that patents are not filed and granted in the widely-understood food industry. Most patent applications are filed for new ingredients, products, packaging, processing methods etc.

A great example of seeking patent protection in the food industry is our client Mosa Meat.

Mosa Meat is on a path to reshape the food industry by producing meat from cells from the muscle of an animal. The cells are placed in a medium containing nutrients and naturally-occurring growth factors, and allowed to proliferate just as they would inside an animal. From one sample from a cow, Mosa Meat is able to produce 800 million strands of muscle tissue (enough to make 80,000 quarter pounders!). 

Mosa Meat is a prime example of a sustainable company that uses technology and science to produce meat in a better, healthier way for the environment. We are extremely happy to be a part of this journey and support Mosa Meat in their mission.

You could find out more about Mosa Meat in one of the Netflix documentary series Explained – The Future of Meat episode. 

Trade secret or patent?

Most of us have heard that Coca-Cola does not have a patent for their famous recipe. What you may not know is that in 1893 Coca-Cola patented its original formula, but, even though the formula has changed since then, it has not been patented since.

You may be wondering why did Coca-Cola decide not to patent the new recipe again? The reason is that patent rights are only valid for 20 years. After this period, the invention passes into the public domain, so in order to protect the valuable formula for Coca-Cola, the company would rather keep it as a trade secret.

Similarly, like Coca-Cola, a lot of companies decide to keep a new method or product in secret instead of filing a patent application that becomes public 18 months from the filing date. It is purely for the individual business to decide which is more beneficial from their point of view. 

How to keep a trade secret as a secret?

To keep recipes a secret, the companies require employees to sign confidentiality agreements when they are hired. The confidentiality remains in force even after the end of the employment agreement. In fact, any disclosure of the trade secret must be made under a strict requirement of confidentiality to remain a trade secret. There are also technical measures that companies must put in place to ensure no leakage of information. 

Trade marks & Designs 

You may have heard the saying that You Eat With Your Eyes First and we are all guilty as charged. Using visually attractive marks, in particular words, designs, letters, numerals, colours, the shape of goods, or the packaging, is crucial in the food industry. 

All of the above can be protected as a trade mark. However, before choosing a trade mark in any business field, it is important to remember a few basic rules: 

  • A trade mark has to be distinctive – It should distinguish you from other companies in the marketplace so that you can protect and build your brand identity and value; 
  • A trade mark cannot be descriptive – APPLE is a good trade mark for phones and computers, but not necessarily for apples;
  • Clear your trade mark before using – make sure that the mark you have chosen is not being used by other companies for similar goods & services.

The packaging of the food items can also enjoy design protection and so does the arrangement of the food on a plate. The ingredients used are traditionally borrowed from one chef to another, however, if the chefs also borrow a protected presentation of the dish, they might open themselves up to a potential infringement claim.

Geographical indications

A geographical indication is a sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin. Geographical indications are typically used for agricultural products, foodstuffs, wine and spirit drinks, handicrafts, and industrial products.

You probably had a cup of Darjeeling Tea from Darjeeling in India, or drank Tequila which is made from the blue agave plant in the area surrounding the city of Tequila, Mexico. 

In the EU there are different types of geographical indications – Protected designation of origin (PDO), Protected geographical indication (PGI), Geographical indication of spirit drinks and aromatised wines (GI).

If any of your products come from a specific region or have certain qualities or reputation due to that origin, it is definitely worth trying to protect it as a geographical indication. 

To summarise, Food and IP have a lot in common. There are multiple ways of protecting Intellectual Property in the food industry. Even if you cannot enjoy patent protection for your grandma’s famous apple pie, it does not mean that if you come up with a new method of producing pasta, that will be the same case. 

You need to think about what the best strategy is to protect your IP, whether you should be filing for a patent or keeping your invention as a secret. Make sure that your name has been cleared and is free to use. Considering this at the start of your journey will allow your creative juices to freely flow without the worry about potential legal conflicts.

Author avatar
Katarzyna Wit
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